The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Jason Lawrance is many online dating users' worst nightmare. The British father-of-three met a number of women on Match.com that he went on to sexually attack, for which he received a life sentence in 2016 (which actually means he will spend at least 12.5 years in prison). In addition to being punished for his violent crimes, the serial sexual predator also got convicted for a more unique reason: he lied to a woman about having had a vasectomy before having sex with her, which resulted in her becoming pregnant and having an abortion. According to the BBC,
Lawrance and the woman were texting each other before they met and he told her he had undergone "the snip" in a discussion about contraception.
The woman checked with him in person when they met up for sex, and Lawrance again said he had undergone a vasectomy.
They had sex twice and Lawrance left in the middle of the night.
He later texted her saying: "I have a confession. I'm still fertile. Sorry. xxx"
Lawrance's text messages were used as evidence he had deceived the woman, and that he knew the woman would not have consented to sex without contraception.
He was charged with two counts of rape because he had sex with the woman twice.
The prosecutor convinced the jury that consent obtained through deception is not true consent, in what is believed to be a legal first in the United Kingdom. While Lawrance has appealed this part of his conviction (as opposed to the ones about the physical sexual attacks), the decision strikes me as sensible. Sexual fraud is a serious societal problem that has become even more prevalent in the online dating era, and I have proposed a tort-type–as opposed to criminal–legal remedy to address the issue (the WaPo op-ed version of my argument can be found here).
The United States has been quite reluctant to respond to sexual fraud in modern history even in the tort setting. The 1990 New Jersey case of C.A.M. v. R.A.W. dealt with a vasectomy-related lie that resulted in the birth of a child. Essentially questioning the existence of an actionable form of harm, the majority decision of the Superior Court, Appellate Division, stated:
At the time plaintiff first became aware she was pregnant, she had the legal right to safely abort the fetus. Thus a claim might be made that plaintiff should have mitigated her damages. We recognize there are a variety of reasons why a woman may decide not to undergo an abortion. However, we question whether a plaintiff in a tort action for the wrongful birth of a normal, healthy child may decide to have the child and then look to defendant for damages of the type sought by plaintiff in this case.
The dissent criticized the majority for using privacy as a shield from liability, and for bringing up mitigation when that issue had not been "raised, briefed, or argued." Lawsuits against women who lied about their use of birth control and became pregnant against men's desires have fared no better.
There have been occasional exceptions to courts' general unwillingness to intervene in this area, such as in the 1983 California case of Barbara A. v. John G., where the defendant lied when he said he didn't want to use a condom because "[he] can't possibly get anyone pregnant", which he knew to be a lie. The plaintiff believed that the defendant was sterile as the result of a vasectomy or for some other reason, had unprotected sex with him, and suffered an ectopic pregnancy. She had to have a Fallopian tube removed in life-saving surgery and became sterile as a result.
The Court of Appeal reversed the trial court's judgment on the pleadings that had dismissed the plaintiff's claims of battery and deceit. The Court of Appeal distinguished the case from ones involving "wrongful birth", stating that the public policy reasons against those cases did not exist here; instead, the court found stronger analogies in cases that allowed actions against defendants who concealed their STD status. The court specified that "the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party", which is language on which the C.A.M. v. R.A.W. case discussed above later relied.
It would be interesting to know how U.S. courts today would handle a case where a plaintiff has an abortion (so no "wrongful birth" is present, and "mitigation" can be said to have occurred) and there is no element of other physical harm present such as with an ectopic pregnancy. In other words, would courts be willing to recognize pregnancy itself (and/or any physical or emotional suffering resulting from an abortion) as a harm sufficient for a tort case to proceed? In my view–even if one buys into the questionable "wrongful birth" rationale in situations of completed pregnancies–they should. Canadian courts seem to agree with me on that particular point, though they continue to have their own struggles with the concept of sexual fraud; this includes the (in my eyes, problematic) failure to recognize the emotional, dignitary, and financial harms to men who became fathers after women lied about being on birth control.
Along related lines, Alexandra Brodsky deplored in a fairly recent piece the lack of remedies in U.S. law for nonconsensual condom removal, a practice also known as "stealthing". This is another area where European jurisdictions are starting to become more willing to intervene. In 2017, a Swiss court handed down a 12-month (suspended) sentence for "defilement from rape" caused by stealthing in a case involving a Tinder date. Last year, a German court found a police officer guilty of sexual assault after he engaged in stealthing. Meanwhile, outside of Europe, an Australian court is set to decide a stealthing case that had a male victim. And Canadian courts have intervened against poking holes in condoms before sex, declaring such acts sexual assault. Let's hope that American courts catch up on the front of sexual fraud sooner rather than later and begin to protect victims better than so far.